STATE v. GRAUE, 240 Or. App. 460 (2011)

245 P.3d 1289

STATE OF OREGON, Plaintiff-Respondent, v. SCOTT VINCENT GRAUE, Defendant-Appellant.

Nos. CR0700412; A138031.Oregon Court of Appeals.Submitted December 16, 2010.
January 19, 2011.

Appeal from the Clackamas County Circuit Court Jeffrey S. Jones, Judge.

Peter Gartlan, Chief Defender, and Ernest G. Lannet, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Anna M. Joyce, Assistant Attorney-in-Charge, Criminal Appeals, filed the brief for respondent.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Rosenblum, Judge.

PER CURIAM

Reversed and remanded.

Page 461

PER CURIAM

Defendant appeals a judgment of conviction for multiple counts of first-degree sodomy and first-degree sexual abuse, arguing that the trial court erred in admitting expert testimony from a CARES nurse practitioner diagnosing child sexual abuse in the absence of any supporting physical evidence. See State v. Southard, 347 Or 127, 218 P3d 104 (2009). Although defendant did object to the admission of the diagnosis as scientific evidence, it is unclear that his objection was sufficient to preserve his current argument that admission of the diagnosis was improper pursuant t Southard. However, the trial court’s error in admitting that evidence is plain error and, for the reasons set forth in State v. Merrimon, 234 Or App 515, 522, 228 P3d 666 (2010), and State v. Lovern, 234 Or App 502, 513-14, 228 P3d 688 (2010), we exercise our discretion to correct that error. In light of our resolution of that issue, we do not reach defendant’s second assignment of error.

Reversed and remanded.

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